10 22 2014
  11:40 pm  
     •     
George Curry

Almost lost among the news last week about the war in the Middle East and a war of another kind in Washington between Republicans and President Obama was a bit of good news:  A federal appeals court, acting on a case remanded by the Supreme Court, upheld the University of Texas’ modest affirmative action program.

Celebration of the victory is expected to be short lived because it is certain that the Supreme Court, which remanded the case to the U.S. Court of Appeals for the 5th Circuit last summer, will take the case up again, this time ruling directly on whether the university’s carefully crafted affirmative action program is constitutional.

Unlike the court’s last affirmative action ruling involving Michigan – which had less to do with the merits of affirmative action and was more about whether a state ballot initiative could be used to ban affirmative action – the Texas case goes to the heart of affirmative action.

The lawuit was brought by Abigail Fisher, a White applicant who was turned down for admission to the University of Texas at Austin, the state’s flagship university, in the fall of 2008. Texas operates a Top Ten Percent Plan, which grants automatic admission to state universities to students who graduate in the top 10 percent of their class.  The year Fisher applied, 81 percent of the university’s admission slots was filled in that manner.

The remaining openings were filled through what the university calls a holistic review program, which looks at such factors as demonstrated leadership qualities, extracurricular activities, honors, awards, essays, work experience, socioeconomic status, family composition, family responsibilities, the applicant’s high school and race. No numbers were assigned to any of those categories.

Fisher did not finish in the top 10 percent of her class, forcing her to compete with 17,131 other applicants for the remaining 1,216 seats for Texas residents. Given the number of Top Ten Percent students accepted to the University of Texas, even if Fisher had been perfect in her holistic review, school officials said, “..she could not have received an offer of admissions to the Fall 2008 freshman class. If she had been a minority, the result would have been the same.”

Of all of the factors admissions counselors examined, such as essays and awards, Fisher chose to blame her failure to gain admission strictly on race.

Like a string of Whites challenging affirmative action, she filed suit claiming the consideration of race violated the equal protection clause of the 14th Amendment to the U.S. constitution, a provision that was first adopted to protect former slaves from Southern lawmakers. It states that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”

As the University of Texas noted, the holistic review was created to give students an individualized review during the admissions process.

“Close scrutiny of the data in this record confirms that holistic review – what little remains after over 80 percent of the class is admitted on class rank alone – does not , as claimed, function as an open gate to boost minority headcount for a racial quota. Far from it,” the appeals court stated. “The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top ten percent results in minority students being under-represented – and white students being over represented – in holistic review admissions relative to the program’s impact on each incoming class.”

For example, the court noted, “Of the incoming class of 2008, the year Fisher applied for admission, holistic review contributed 19 percent of the class of Texas students as a whole – but only 12 percent of the Hispanic students and 16 percent of the black students, while contributing 24 percent of the white students.”

In 2003, the Supreme Court, in Grutter v. Bollinger, upheld the constitutionality of affirmative action in a case involving the University of Michigan Law School. The court’s 5-4 majority accepted the assertion that diversity is essential to the educational mission of universities, but required a standard of “strict scrutiny” be applied, requiring that remedies be narrowly tailored to achieve the goal of a diverse student body.

The University of Texas, following a long, documented history of racial animus, complied with that narrow Supreme Court standard and the Fifth Circuit originally sanctioned those efforts. The decision was appealed and the Supreme Court sent the case back to the appeals court. Now, for the second time since 2011, the 5th Circuit judges have stated unequivocally that UT is operating a lawful affirmative action program.

That was evident to Ruth Bader Ginsburg, the lone dissenter in the 7-1 decision to send the Texas cases back to the 5th Circuit . She said, “…Like so many educational institutions across the Nation, the University has taken care to follow the model approved by the Court in Grutter v. Bollinger.”

But this conservative-dominated Supreme Court will probably visit this case yet again, trying to find a way to chip away at one of its own rulings.

George E. Curry, former editor-in-chief of Emerge magazine, is editor-in-chief of the National Newspaper Publishers Association News Service (NNPA.) He is a keynote speaker, moderator, and media coach. Curry can be reached through his Web site, www.georgecurry.com. You can also follow him at www.twitter.com/currygeorge and George E. Curry Fan Page on Facebook

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